SAYYED MAZAHAR ALI AKBAR NAQVI, J.---- Through this Constitutional Petition filed in terms of Article 199 of The Constitution of the Islamic Republic of Pakistan, 1973, following prayer has been made:- "It is therefore most respectfully prayed that this Hon'ble Court may very graciously allow the instant Writ Petition by:- i) quashing the impugned order dated 25.10.2018 passed by Respondent No.1; ii) declaring that the failure on part of the Respondents to regularize the services of the Petitioners constitutes a violation of their Fundamental Rights guaranteed to them by the Constitution; iii) directing the Respondents Nos. 1-4 and any or all other Respondents concerned to regularize the services of the Petitioners in such a manner as to bring them at par with their peers, i.e. all those who were offered contractual appointments on 31.03.2008; and iv) directing the Respondents Nos.1-4 and any or all other Respondents concerned to ensure that the Petitioners are paid their outstanding dues on account of services rendered between March, 2018 and July, 2018. Any other relief deemed fit and proper by this Hon'ble Court in the facts and circumstances of the case is also prayed for .... ".
2. At the very outset, while opening his arguments, learned counsel for the petitioners has contended that both the petitioners are highly qualified, as petitioner No.1 holds the degree of M.Sc. in Botany as well as M. Phil in Forensic Chemistry and is pursuing Ph.D., whereas petitioner No.2 has done M.Sc. as well as M. Phil in Molecular Biology besides being enrolled in Ph.D program for Molecular Biology and Forensic Science. Contends that respondent No.6 advertisement dated 09.02.2008 invited applications for recruitment of different posts lying vacant in various development projects of the Centre for Molecular Biology . Adds, that the petitioners applied for the post of Research Officer (BPS-17), wherein they were declared successful and consequently they were appointed on contract for a period of three years vide appointment letters dated 31.03.2008 issued by respondent No.6, which was extended from time to time being satisfied with performance of the petitioners. It is next argued that subsequently on account of devolution after the enactment of and as mandated by the Constitution (Eighteenth Amendment) Act, 2010, the Centre for Excellence in Molecular Biology was bifurcated into two Centers namely Centre of Excellence in Molecular Biolog y (CEMB), which was placed under the Higher Education Department/ respondent No.7 and Centre of Applied Molecular Biology (CAMB), which was placed under the Federal Ministry of Science and Technology/ respondent No.8. It is asserted that petitioners were assigned duties in CAMB instead of CEMB. It is argued that peers of the petitioners, who were performing duties in CEMB were regularized with effect from 22.10.2012, whereupon the petitioners earlier approached Director General CAMB/ respondent No.4 for regularization of their services, but on his refusal, they earlier filed Writ Petition No.7160 of 2013, which was transmitted to respondent No.1 as representation with a direction to decide the same within four weeks by another learned Single Bench of this Court vide order dated 26.03.2013. Further submits that in compliance of such order , respondent No.8 proceeded to accept representation of the petitioners vide order dated 28.05.2013 and consequently their case was put up before Executive Committee of CAMB in its meeting held on 24.06.2013, wherein it was decided that whenever government policy would permit, the petitioners will be regularized, but when their genuine request was not acceded to, they made series of representations to respondent No.4 for regularization of their services. It is argued that in the meanwhile, administrative control of CAMB was transferred from respondent No.8 to respondent No.2 and instead of regularizing services of the petitioners, they were appointed on ad-hoc basis for six months vide office order dated 01.09.2016. It is next argued that respondent No.4 vide letter dated 04.11.2016 turned down request of the petitioners for regularizat ion of their services, whereupon they filed Writ Petition No.1571/ 2017, which was disposed off by learned Single Bench of this Court on 10.09.2018 with a direction to respondent No.1 to decide representation of the petitioners within a period of one month. It is contended that after expiry of their contract in March, 2018, the petitioners continued to work till July, 2018 on verbal assurance that they would 'soon be regularized, but they were not paid salary for the said period. Further contends that subsequently in compliance of direction passed by this Court in Writ Petition No.1571/ 2017, respondent No.1 turned down request of the petitioners vide impugned order dated 25.10.2018. Contends that while passing impugned order , no proper and plausible reasoning has been given. It is next argued that while passing impugned order , it is totally ignored that services of peers of the petitione rs, who were also appointed on contract along with petitioners, were regularized w.e.f. 22.10.2012, but such relief was not extended to the petitioners, which amounts to discrimination and miscarriage of justice. The main crux of arguments advanced by learned counsel for the petitioners is that the petitioners have served the respondents for about ten years without any break and they have unblemished record in their credit, hence, while setting aside impugned order dated 25.10.2018 passed by respondent No.1, a direction may be issued for regularization of services of the petitioners.
3. On the other hand, learned Additional Advocate-General Punjab assisted by learned counsel representing respondents' University have vehemently opposed this petition. It is submitted that the petitioners were appointed purely on contract basis for a period of three years and both the petitioners got two years extension in their contract up to 22.04.2013 and their contract was given extension up to 26.03.2018. Further contends that in pursuance of Writ Petition No. 1571 of 2017, the Vice Chancellor of the University decided the representation quite in accordance with law. Adds that the present Constitutional Petition is not maintainable, as the petitioners have alternate remedy before the Chancellor , University of Punjab in view of Section 11-A of the University of Punjab Act, 1973. In such background, it is argued that the petition in hand is liable to be dismissed.
4. Arguments advanced pro and contra have been heard and record available on file perused.
5. There is no second cavil to this proposition that contractual appointment of 23 Research Officers (BS.17) was made on the recommendation of selection committee held on March 2008, approved by Director', National Centre of Excellence in Molecular Biology for the period of three years. Out of 23 Rese arch Officers, seven Research Officers Were placed at CAMB, then out of seven Research Officers, five were adjusted against the recurring posts and two were placed in the development project. The case of first five officers who were drawing their salaries from recurring was sent to the Cabinet Sub-Committee on regularization of contract basis/ daily wages employees for regularization policy and the committee considered the case and conveyed its approval A to Ministry of Science and Technology and after approval, said five officers were regularized vide office order No.CAMB/AO/INT/53/13 dated 28.08.2013. In pursuance of Writ Petition No. 7163 of 2013 filed by the petitioners, the representation of the petitioners were accepted by Secretary , Ministry of Science and Technology , Government of Pakistan vide order dated 28.05.2013 with the following observations:- "Accordingly , I accept the representation to his extent that present two petitioners should be treated at par with the other five colleagues as far as their salary and perks are concerned. The present two petitioners shall be adjusted against the non-development recurring posts if the posts are vacant. In case there is no vacancy available for the time' being, they may be adjusted against the post in lower pay scale or upper scale but they will be given BS.17 personal to them in which they are already working for the last five years. Ultimately to resolve the issue of availability of posts and vacancies, this case will have to be placed before the Executive Committee and DB CAMB may take necessary steps in that direction. Representations are disposed off accordingly"
It is further noticed that the case of the petitioners was placed before Executive Committee and vide order dated 24.06.2013 following decision was made:- "ROs mentioned at S. Nos. 6 and 7 will be taken on contract on the recurring side by down-grading or up-grading the available posts. Initially their contract will be for two years. However , whenever any government policy would permit these two will fie regularized"
It is pertinent to mention here that after the transfer of CAMB from Ministry of Science and Technology , (MoST )
Government of Pakistan, Islamabad to Punjab University Lahore on 01.07.2015, two posts of Research Officers were created by the Syndicate in its meeting held on 25.06.2016 and the contract of the petitioners were extended for six months and now the contract of the petitioners has been expired on 27.03.2018. Subsequently after 27.03.2018, neither their services were regularized nor extended. Admittedly the petitioners were offered job by the competent authority in response to combined advertisement of temporary post likely to be permanent of Centre of Applied Molecular Biology (CAME) and Centre of Excellence in Molecular Biology (CEMBP dated 09.02.2008 for three years. Their recruitment period was being extended by the authority till 27.03.2018. Furthermore, there is no allegation/ complaint against the petitioners with regard to carrying out official duties; rather extension of the period from time to time in favour of the petitioners shows trust of the authority upon their services. Such extension in the tenure of service of the petitioners has undeniably created a legitimate expectancy in their mind with reference to their retention in the service on regular basis. Otherwise it is matter of serious concern that a person who has already served 10 years in institution governed by the Government if thrown out from the service, at this juncture of time meaning thereby he would be deprived of any service in any of the institution under the government due to age and would tantamount to discrimination as some of the co-employee have already been regularized and the case of the petitioners is squarely hit by Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. While dealing with similar question, the Hon'ble Supreme Court of Pakistan in case titled "Board of Intermediate and Secondary Education, Faisalabad through Chairman and others v. Tanveer Saud and others" (2018 SCMR 1405 ), has held as under:- "---Daily wagers/ contract employees of Board of Intermediate and Secondary Education ("the Board ")--- Regularization in service ---Respondent-employees had been working in the establishment of the Board for long period of time ranging between 3 to 12 years, on contract basis--- Contracts of said employees provided that they were initially appointed for a period of 89 days but after the expiry of said period, their contracts were renewed from time to time for further periods of 89 days at a time with an artificial break of 1 or more days; held, that motive behind such artificial break was to avoid regularization of respondent' services on the pretext that they were not continuously in service---Since the respondents were in service for a long time, it clearly showed that the posts they were occupying were permanent in nature and not casual or temporary---Service s of respondents were not only required but also beneficial to the Board and that they (respondents) had been performing their duties with due diligence to the satisfaction of the authorities---High Court had rightly directed the Board to regularize services of respondents---Supreme Court deprecated the practice of keeping employees on temporary basis for long periods of time without confirming or regularizing their services---Petition for leave to appeal was dismissed and leave was refused"
In another case titled "Board of Intermediate and Secondary Education, DG Khan and others v. Muhammad Altaf and others" (2018 SCMR 325 ), the Apex Court has observed as under:- "---Daily wage employees---Regularization in service---Respondents had been employed by the petitioner - Education Board on daily wages for a considerable period of time---Employment contracts of respondents were terminated after every 89 days and were resumed a day thereafter ---All the respondents had served the petitioner - Board for not less than nine months, however with artificial breaks, to break the continuity of their service with mala fide intent to avoid their regularization---Despite the fact that services of respondents had matured and they were under the law required to be regularized, the petitioner -Board contemplated to make fresh appointments through advertisement---High Court had rightly regularized the services of the respondents with the petitioner -Board-- Petition for leave to appeal was dismissed accordingly......".
6. As regards objection regarding maintainability of this constitutional petition in presence of alternate remedy of appeal before the Chancellor , University of Punjab is concerned, in this respect it is observed that it would not be in the interest of justice and fitness of things that the petitioners be again pushed back to authority , which had refused to accede their genuine request and are insisting that the action so taken by it is not only in accordance with law but is also transparent, notwithstanding the fact that they had infused their blood for the betterment of University by devoting about ten years of their precious life and now they have lost all chances to get fresh appointment elsewhere on account of overage. Admittedly , the petitioners were terminated after expiry of their contract and their request for reinstatement/regularization was not acceded to, however , the petitione rs were directed to apply for any post as arid when advertised in print media, if otherwise eligible. Apart from above, this Court is of the consistent view that the act of the respondent/ authority is also against the dictates of substantial justice. It is settled principle of law that technology of law and rule shall not operate as an absolute bar in the way of the Court as preference in this regard would defeat the substantial justice. Guidance in this regard is sought from the dictum of law laid down by the august Supreme Court of Pakistan in the case of "Mst. Shahista Bibi and another v. Superintendent Central Jail, Mach and 2 others" (PLD 2015 Supreme Court 15) , wherein it has been held as follows: "---Hardship case---Substantial justice by court---T echnicality of law---For doing substantial justice in the true sense in a hardship case, technicality of law and rule shall not operate as an absolute bar in the way of the court because giving preference to the technicality of law would defeat substantial justice".
In the case of Nizamuddin and another v. Civil Aviati on Authority and 2 others (1999 SCMR 467), following dictum of law has been laid down by the august Supreme Court of Pakistan:- "---Art. 2.5---Equity of citizens---Government is not supposed to discriminate between the citizens and its functionaries cannot be allowed to exerci se discretion at their whims, sweet-will or as they please rather they are bound to act fairly , evenly and justly".
Even otherwise, the extraordinary constitutional jurisdiction of this Court is always exercised with compassion and this Court cannot disregard the fact that non-regularization of services of the petitioners is an act violative to right of livelihood. In this respect, reliance can be placed on case titled "Dr. Naveeda Tufail and 72 others v. Government of Punjab and others" (2003 SCMR 291 ), wherein the august Supreme Court of Pakistan has held as under:- "Employment for a common person is a source of livelihood and a right of livelih ood is an undeniable right to a person. If work is sole source of livelihood of a person, then right to work is not less than a fundamental right which has to be given protection."
7. Undeniably the respondent/ authority , by not regularizing the services of the petitioners, despite the fact that the petitioners are not only eligible for the said post, rather they have served more than ten precious years of their life with the department and out of 23 contractual Research Officers, seven Research Officers were placed at CAMB and then out of seven Research Officers five were adjusted against the recurring posts who were already regularized vide office order No.CAMB/ AO/ INT/ 53/ 13 dated 28.08.2013 but the services of the petitioners were not regularized. There is no cavil to the proposition that dispensation of justice being sacred duty not only requires the Judicial or quasi-judicial authority but also cast equal responsibility upon public functionaries to act fairly, justly , without any discrimination. Making a prima facie case for discrimination in violation of Article 25 of the Constitution which guarantees equal of all persons before the law as well as Article 4 which guarantees the right to enjoy the protection of law and to be treated in accordance with the law. As the five contractual Research Officers who were appointed in response to combined advertisement along with the petitioners have already been regularized, hence, the case of the petitioners is at par with said Research Officers and the petitioner s are also entitled for the same treatment. Reliance in this regard is placed in the case of "Government of Khyber Pakhtunkhwa and others v.
Adnanullah and others" (2016 SCMR 1375 ), wherein the Hon'ble Supreme Court has held at Paragraph 31 as follows:- "The record further reveals that the Respondents were appointed on contract basis and were in employment/ service for several years and Projects on which they were appointed have also been taken on the regular Budget of the Government, therefore, their status as Project employees has ended once their services were transferred to the different attached Government Departm ents, in terms of Section 3 of the Act. The Government of Khyber Pakhtunkhwa was also obliged to treat the Respondents at par as it cannot adopt a policy of cherry picking to regularize the employees of certain Projects while terminating the services of other similarly placed employees."
8. For the foregoing reasons and also seeking guidance from the dictum of law laid down by the august Supreme Court of Pakistan in the cases supra, this Court is persuaded to accept this constitutional petition and the respondents are directed to reinstate the services of petitioners and regularize the same with immediate ef fect.
9. Petition allowed.